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A Five-Step Approach to Determining Which Mental State Applies

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by: Lburrows • May 16, 2014 • no comments

One of the fundamental tenets of criminal law is (perhaps unsurprisingly) also one of the most mystifying: the mens rea requirement.[1] Which mental state applies to a particular element? Must the state prove multiple mental states when it alleges certain crimes? What if the statute defining the offense does not include a mental state word (e.g., knowingly)? Recent cases have addressed those issues and have outlined a principled approach to the culpability analysis.[2] What follows is an attempt to distill those principles into a checklist of sorts. After reviewing the key steps in the analysis, this article will apply them to a familiar statute (and one close to the author’s heart)[3] to elucidate how and when the issue comes up and how and when you should respond.

Culpability in Five Easy (?) Steps:

1. Is the crime “inside” or “outside” the Criminal Code?

Under ORS 161.105(1)(b), the analysis changes depending on whether the crime is inside or outside the 1971 Criminal Code. The primary source to determine whether a particular crime is inside the Code is ORS 161.005.[4] This is a critical first step to determining which mental state applies. If your crime is within the Criminal Code, continue to step 2. If your crime is outside the Code, stop reading and apply the analysis outlined in State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011).[5]

2. Is the element in question “material?”

This is an easy one. A “material” element concerns the substance or quality of the crime. An element is material unless it relates solely to the statute of limitations, venue, jurisdiction, or another procedural prerequisite to conviction.

Here’s the important part: all material elements require a culpable mental state.[6]

Now that you know a mental state is required, your next task is to determine which mental state applies to your element.

3. Does the statute include a mental state word?

If your statute provides a mental state (intentionally, knowingly, recklessly, or with criminal negligence), that mental state probably attaches to each material element of the offense.[7]

But beware: the general rule doesn’t apply where the statute indicates that the mental state applies to a single element.[8] If the mental state word only applies to one element, you must continue to step 4 to determine the mental state(s) for the remaining elements.

4. What type of material element is at issue?

This is where the fun begins. There are three types of material elements in Oregon law: conduct, result, and circumstance. The type of element dictates the minimum standard of culpability (see step 5). So, to determine which mental state applies, you must first determine which type of material element you have.

Most of these are obvious. Conduct elements express action; look for verbs (e.g., possess, tamper, resist, obtain, fail to prevent, etc.). Result elements criminalize the effect of an action, regardless of how that action took place (e.g., cause the death of). The rest are circumstances; a circumstance is a fact, status, or condition distinct from the targeted conduct (e.g., has been convicted of a felony, dwelling, at night, etc.).

Some are more complicated and can depend, for example, on the part of speech at issue. For example, in the resisting arrest statute, “resists a person…in making an arrest” is a complete conduct element, not a single conduct element (resists) plus a circumstance element (in making an arrest). Why? Because, among other reasons, “in making an arrest” (amended from the earlier version, “from making an arrest”) is a prepositional phrase modifying the prohibited conduct.[9]

5. Which mental states apply to the element?

The proper mental state depends upon which material element you have.[10] Note that the state can allege and prove any of the permissible mental states.

Appellate review table.jpg

Case Study: Unauthorized Use of a Motor Vehicle (UUMV)

Let’s illustrate those steps by examining the UUMV statute. ORS 164.135 provides, “A person commits the crime of [UUMV] when: (a) [She] takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat or aircraft without the consent of the owner.”

Can the state properly allege that your client “with criminal negligence” rode in another’s vehicle without the consent of the owner? You may have a winning demurrer. Moving through the steps: (1) ORS 164.135 is within the 1971 Code; (2) “rides in” is a material element that, consequently, requires a culpable mental state; (3) the statute does not include a mental state word; (4) “rides in” is a conduct element; and so (5) the lowest permissible mental state must be knowingly.

Which mental state instructions should you request? The Uniform Instruction isn’t helpful: “Oregon law provides that a person commits the crime of unauthorized use of a vehicle if the person [insert appropriate culpable mental state].” UCrJI 1819 (brackets and italics in original). Of course, as discussed above, we know now that the appropriate mental state is knowingly.

There’s one more step. What mental state attaches to the lack of owner’s consent? That is, must your client have known that the vehicle she rode in was stolen? Or is it sufficient for the state to prove that she was merely criminally negligent with regard to whether she lacked the owner’s consent? This is the crux of your case.[11]

The answer turns on whether the lack of consent is a circumstance element or is part of a larger conduct element (“rides in… another’s vehicle…without consent of the owner.”). I think it’s the latter. “Without the consent of the owner” is a prepositional phrase (two of them, actually) modifying a conduct element. And the gravamen of the offense is unauthorized use. We’ll see what the court says.

Regardless of what the court decides on UUMV, these are issues that go to the heart of our practice as criminal defense attorneys. We can use emerging case law to continue to hold the state to its burden of proving every element of the offense beyond a reasonable doubt, including mens rea. ___________________________________________________________________________

  1. See Sanford Kadish, “The Decline of Innocence,” 26 Cambridge Law Journal 273, 273 (1968) (“The term ‘mens rea’ is rivaled only by the term ‘jurisdiction’ for the varieties of senses in which it has been used and for the quantity of obfuscation it has created.”).
  2. See State v. Gray, 261 Or App 121, ___ P3d ___ (Feb 20, 2014) (trial court plainly erred by failing to give instruction on culpable mental state for “forcible compulsion” element, even though attorney did not request it); State v. Wier, 260 Or App 341, 352-53, 317 P3d 330 (2013) (“lack of consent” for purposes of third-degree sexual abuse requires, a minimum, a mental state of criminal negligence); State v. Olive, 259 Or App 104, 312 P3d 588 (2013) (state must prove that the arrestee knew he was being arrested at the time of his resistance to be convicted of resisting arrest).
  3. See State v. Simonov, A151415 (orally argued on April 22, 2014).
  4. But see State v. Wolfe, 288 Or 521, 525 n 3, 605 P2d 1185 (1980) (“The legislative history indicates that the provision for offenses ‘outside the Oregon Criminal Code’ was designed to cover the great variety of regulatory statutes that contain provisions for enforcement by criminal prosecution, and particularly to avoid strict liability for offenses potentially punishable by imprisonment. … The sections of ORS chapter 166 dealing with weapons, of which ORS 166.275 is one, were eventually excluded in the process of getting the criminal law revision ready for legislative enactment, but not because they were regarded as extraneous to the criminal code. Thus although they are among those sections that were not made part of the ‘Oregon Criminal Code of 1971,’ see ORS 161.005, it does not necessarily follow that they are ‘statutes outside the Oregon Criminal Code’ as referred to in ORS 161.105.” (citations omitted)).
  5. ORS 161.105(1)(b) (“Notwithstanding ORS 161.095, a culpable mental state is not required if … (b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.”).
  6. ORS 161.095(2) (“Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”).
  7. ORS 161.115(1) (“If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state.”).
  8. For example, ORS 165.071 provides, “a person commits the crime of criminal possession of a forged instrument in the second degree if, knowing it to be forged and with intent to utter same, the person possesses a forged instrument.” “Knowing” applies to the “forged” element only; to violate the statute, a person must (1) know the instrument she possesses is forged and (2) possess it with the intent to utter it.
  9. The subtext here is that this part of the analysis is the most flexible and, accordingly, the most amenable to your creative arguments.
  10. ORS 161.085(7)-(10).
  11. Savvy readers know that this is a matter of “well settled” law. See, e.g., State v. Lasky, 259 Or App 307, 317, 314 P3d 304 (2013). Then again, the Court of Appeals has not yet gone through its present statutory culpability analysis with regard to UUMV. The issue is currently pending before the court. See State v. Simonov, A151415 (orally argued on April 22, 2014).